Advertising is a major expenditure for pharmaceutical companies launching new products, but in the cutthroat European market, companies often try to gain competitive advantage by accusing competitors of engaging in false advertising. As a result, manufacturers can find themselves facing a lawsuit at the very onset of a product launch.
Tanja Eisenblätter, litigation partner in Hogan Lovells’ Hamburg office, says that manufacturers operating in Europe should consider five key points when considering false advertising claims.
- First things first: prepare for potential litigation before launch
“I always advise my US clients to have a law firm at their side, and a well thought out strategy to support their advertising claims, and to do it before they launch a new product,” Eisenblätter says. “A preliminary injunction for a false advertising claim can be granted within days here in Germany. If you start preparing your arguments against a claim only once you have received a warning letter, it’s usually too late.”
- Anticipate different approaches to false advertising across Europe
“In Europe you have a jungle of jurisdictions. We don’t have one European law that fits all; therefore you need a lawyer who knows the law in different countries,” Eisenblätter says. “Clients are always surprised how (false advertising claims) are handled in different European countries. For example, Italy is rather strict and there are lots of things you cannot advertise, whereas some other countries, like the Nordic countries, hardly ever challenge advertising matters at all.”
- Be ready for false claims online
“There are many false statements being made about pharmaceuticals on Facebook and on social media,” Eisenblätter says. “I currently have a client who’s battling fake news online. But the problem is that under European law, (the manufacturer) cannot dismiss that false information because that would be considered advertising for the product. Therefore they’re unable to go to the public and declare that their product is safe, despite what has been said online.”
- Know how to back up your claims
“The biggest legal issue that companies face in Europe – and especially in Germany – is how to justify or support an advertising claim with a study that they’ve conducted,” she says. “In cases where a false advertising claim is made against you from a competitor, you’ll really need a study that shows the result that you’re claiming.”
5. Build a team that can support your science
“Most of our work (at Hogan Lovells) is to translate scientific questions into legal language so that judges understand what we want from them,” Eisenblätter says. Judges are becoming more knowledgeable about the way studies are conducted and they have a better overall understanding of how a pharmaceutical actually works. Its essential to work with a legal team that not only knows the law, but also the scientific background of your product.”
For additional insights from Eisenblätter on managing false advertising claims in Europe, watch the video above.
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